For years now industry wags have been saying Nintendo should get out of the portable hardware business and just bring its popular game franchises directly to Apple's iOS devices. So when an app called Pokemon Yellow appeared on the iOS App Store this weekend, many likely thought Nintendo had finally taken that advice. Those people would end up disappointed, though, as the 99 cent app, which is currently sitting at No. 3 on iTunes' paid apps charts, is actually an unauthorized copy posted by shady developer "House of Anime."

Of course, there's a long history of App Store developers taking a popular game concept, throwing on a legally distinct coat of paint, and quickly cashing in with a familiar "clone." But House of Anime's Pokemon Yellow is on an entirely different level than games that are merely "inspired" by popular titles, taking screenshots and characters from the Nintendo's title whole cloth.

House of Anime, the developer behind other highly questionable App Store entries like Digimon+ and YuGiOh+, claims in the app's description that "all trademarks and copyrights are owned by their respective owners," as if simply saying as much provides legal protection for outright IP theft. And despite the developer's claims that the game is "just like the original," highlighted one-star customer reviews suggest the app is a "scam" that doesn't even work after the title screen. (Interestingly, the developer has posted an apology for the performance issues on its website while totally ignoring the fact that the game is not, in fact, theirs to profit from).

Apple's role

How did such a a case of blatant IP theft get through the Apple's app review process? Quite easily, it seems. Apple doesn't appear to perform any sort of legal check before putting an app on the store, reviewing submitted apps primarily for technical issues. Instead, Apple relies on copyright holders to file a complaint once they notice the app is already on the store.

It's a somewhat understandable position for Apple; doing a comprehensive copyright search for every submitted app would put a ridiculous strain on reviewers that are already wading through dozens of new submissions every day. And even if you'd think a reviewer should notice that a game like Pokemon belongs to Nintendo even without such a search, that reviewer would still have no way of knowing (and likely no time to check) if House of Anime is an official licensee for the iOS version of the game.

The protection system, as it's currently designed, can and does work well—earlier this month, Apple took down dozens of blatant copycat games like Plants vs. Zombie, Numbers with Friends and Angry Ninja Birds from developer Anton Sinelnikov. Still, titles like Pokemon Yellow or others that illegally appropriate copyrighted games and characters manage to sneak through all the time, often surviving through obscurity or lack of legal will on the part of copyright holders.

Will the real Lugaru please stand up?

Which one would you buy?

Lugaru

Even after the fact, figuring out the legal status of an app isn't always so simple. Last year, third-party developer iCoder created its own version of Wolfire Games' Lugaru HD, and started selling the game as plain old Lugaru on the Mac App Store, at a price significantly less than the "official" version. But iCoder was adamant it had done nothing wrong, telling Kotaku at the time it believed it was allowed to port and sell the game, which Wolfire had released earlier under an open source license.

"While we do understand [Wolfire's] regrets, this does not change the fact that we have every legal right to market and sell the software, and we feel that $1.99 is a fair price. ... The license we were granted allows for non-exclusive redistribution of the source code or the compiled product, modified or unmodified, for a fee or free of charge."

Luckily for Wolfire, the GPL license for the open source version of Lugaru let the company maintain rights to game assets like art and sounds, giving the company a valid claim against the iCoder version. Apple eventually pulled Lugaru off the App Store, but not before the unofficial release had reached No. 60 on the Mac App Store charts.

And therein, perhaps, lies the lesson in all this for Nintendo. If even a broken, unlicensed version of a decades-old Pokemon game can make it to the third position on the iOS App Store over the course of a weekend, imagine what a sensation a real, new Pokemon game would be on Apple's devices. Sure, it might cost Nintendo a few 3DS hardware sales, but why continue to struggle building an audience for your own mobile platform when Apple already has an established device with an audience that's obviously desperate for your software. In other words, why continue to try and beat the IP thieves when you can, instead, join them?

Latest Ars Video >

War Stories | Thief: The Dark Project

1998's Thief: The Dark Project was a pioneer for the stealth genre, utilizing light and shadow as essential gameplay mechanics. The very thing that Thief became so well-known for was also the game's biggest development hurdle. Looking Glass Studios founder Paul Neurath recounts the difficulties creating Thief: The Dark Project, and how its AI systems had to be completely rewritten years into development.

War Stories | Thief: The Dark Project

War Stories | Thief: The Dark Project

1998's Thief: The Dark Project was a pioneer for the stealth genre, utilizing light and shadow as essential gameplay mechanics. The very thing that Thief became so well-known for was also the game's biggest development hurdle. Looking Glass Studios founder Paul Neurath recounts the difficulties creating Thief: The Dark Project, and how its AI systems had to be completely rewritten years into development.

Kyle Orland
Kyle is the Senior Gaming Editor at Ars Technica, specializing in video game hardware and software. He has journalism and computer science degrees from University of Maryland. He is based in the Washington, DC area. Emailkyle.orland@arstechnica.com//Twitter@KyleOrl

The problem is that they gain a #1 iOS seller, but lose the chance to sell 5-10 different 3DS games. Keeping Pokemon exclusive sells the Nintendo hardware, the exclusive game, then other games (exclusive and non-).

Edit: also notice the game was #3 at a price of 0.99, while real Pokemon games sell for $32 and up at Amazon. Where would the iOS game be on the charts at $20-30?

"And therein, perhaps, lies the lesson in all this for Nintendo. If even a broken, unlicensed version of a decades-old Pokemon game can make it to the third position on the iOS App Store over the course of a weekend, imagine what a sensation a real, new Pokemon game would be on Apple's devices. Sure, it might cost Nintendo a few 3DS hardware sales, but why continue to struggle building an audience for your own mobile platform when Apple already has an established device with an audience that's obviously desperate for your software."

Sorry but that's one of the dumbest business strategy statements I've ever seen. Please don't state baseless statements unless you actually understand them. There are complex reasons from a brand equity, demographic, and sales perspective to not do things. There are many things that may work from a short term perspective but detrimental longer term. If you take the approach of just selling wherever you can make some money, there would not be multiple platform system, everyone would just choose one and put everything on it. Do you see Disney licensing out their star icons to Dreamworks?

Obviously Nintendo should pursue a deal with Android since Apple is full of scam artists. *snicker*

But I agree with Kyle Orland about them making their games available outside of their own platforms (iOS, Android, etc.). I'd re-buy games I already own just to have them available to me on my phone. Suikoden FTW!

"And therein, perhaps, lies the lesson in all this for Nintendo. If even a broken, unlicensed version of a decades-old Pokemon game can make it to the third position on the iOS App Store over the course of a weekend, imagine what a sensation a real, new Pokemon game would be on Apple's devices. Sure, it might cost Nintendo a few 3DS hardware sales, but why continue to struggle building an audience for your own mobile platform when Apple already has an established device with an audience that's obviously desperate for your software."

Nintendo could sell a million copies of Pokemon on iOS for $1, like this app. and make $700k after Apple's 30% cut.

Or they could sell half as much for the DS for $39.99 and force the consumer to buy the device for $249 and then spur purchases of other DS games.

If I were Nintendo, I know which route I would take. Nintendo won't become SEGA, where they simply attempt to bank on their IP, for quiet some time.

I doubt that Nintendo will fall on their own sword and start selling their games on other platforms, they're too like Apple to give up hardware control. While admirable, it would be nice to see them reach a detente with Apple and form some exclusive partnership. I'd cough up serious cash for a genuine GameBoy emulator for my iphone and a Wii emulator for my iMac. I don't have room in my small and awkwardly shaped apartment for a TV, so my iMac is my entertainment center and the $40 I spent on Batman Arkham Asylum was the best money I've spent on a video game in decades. Nintendo, please do the math: $60ish for a PS3 controller + $40 for one game the publisher already made a buttload of money on = happy customer.

If the game doesn't work past the title screen, how did it get through the review process?

There's also the fact that it was selling at $1. These games are not fart apps, they take a lot more money to make and would sell for considerably more then $1 in a real sales situation.

Given that we know that Steam sales skyrocket as games get cheaper (unsurprisingly), this incident tells us absolutely nothing about how well a $40 Pokemon game would sell on iOS.

I'm a pretty firm believer that Nintendo's hardware business is holding back their software business (particularly given the suckiness of the 3DS), but the commentary here is based on a lot of flimsy assumptions and does nothing to advance the case at all.

"but why continue to struggle building an audience for your own mobile platform when Apple already has an established device with an audience that's obviously desperate for your software."

I'm not sure what the editor is getting at.

Apple have sold 60 million iPod Touch and 37 million iPhones for all generations. That's 97 million. Nintendo have sold over 285 million of the DS range. Source wikipedia.

I think Nintendo have a bigger established platform than Apple.

Where are you getting your figures from? According to http://www.eurogamer.net/articles/2011- ... 89-million, total iOS devices almost a year ago (note the date of the article) where already at 189 million. Also, note that that does not even include the 4S or the iPad 2, and was published well before the 2011 holiday season, in which Apple sold both of those devices like hotcakes. While 285 million still is almost a hundred million more devices, the DS has also been around since 2004...a solid 3 year lead on the iPhone. Not to mention the fact that the 3DS isn't exactly setting the world on fire.

At any rate, I don't agree that Nintendo should acquiesce and begin putting their software on the iOS App Store (yet), but a 30-second googling for iPhone sales would have revealed that iOS is not as far behind Nintendo in device sales as you have made it out to be. It's entirely possible that they could even eclipse total sales of the DS in 2012.

I'm curious about what happens after the game is pulled. Does apple pay out? Are the games removed from device (during next sync) and the user credited? Assuming 1 review per 20 sales - he made $20,000 just counting 1 star reviews.

The problem is that they gain a #1 iOS seller, but lose the chance to sell 5-10 different 3DS games. Keeping Pokemon exclusive sells the Nintendo hardware, the exclusive game, then other games (exclusive and non-).

Edit: also notice the game was #3 at a price of 0.99, while real Pokemon games sell for $32 and up at Amazon. Where would the iOS game be on the charts at $20-30?

You're missing the point - Pokemon Yellow was released more than a decade ago. 10 - 10! - years later, it can still hit #3 on the top charts. This isn't some brand new game that was going to drive 3DS sales. On top of that, you can't buy Pokemon Yellow new, let alone run it on a 3DS, so Nintendo loses on both a) licensing older games to be remade and b) hardware sales.

I don't give a crap about the 3DS, but if I could pay a couple bucks to get the classics from my childhood, I would. Hell, I bet you could take the original Donkey Kong from 30 years, sell it for $1, and still be rolling in cash. It's not like you have to go through the entire development process again - the design is already there. Port the code, update the graphics a bit, and send it through testing. Done.

And imagine now, all these kids who have iPads and not 3DS' would at least be introduced to the series, increasing demand for the newer hardware and games. I don't know about you, but I wouldn't buy my kid a 3DS and a Pokemon game on the hope that they might end up liking it.

But anyway, at least we have emulators. Maybe one day Nintendo will realize what's going on, but I doubt it. Hell, even Sega figured it out and released some of the old Sonic games.

...Why do people seriously think Nintendo should put their games on iOS or Android? That would be suicidal for them, and would make getting a 3DS pointless!Also, take into account the price. Pokemon games aren't just random fart apps or time-waster games like Angry Birds. Nintendo isn't going to sell one of their most profitable (and system selling) franchises on another platform, especially not for just $1.

You're missing the point - Pokemon Yellow was released more than a decade ago. 10 - 10! - years later, it can still hit #3 on the top charts. This isn't some brand new game that was going to drive 3DS sales. On top of that, you can't buy Pokemon Yellow new, let alone run it on a 3DS, so Nintendo loses on both a) licensing older games to be remade and b) hardware sales.

I don't give a crap about the 3DS, but if I could pay a couple bucks to get the classics from my childhood, I would. Hell, I bet you could take the original Donkey Kong from 30 years, sell it for $1, and still be rolling in cash. It's not like you have to go through the entire development process again - the design is already there. Port the code, update the graphics a bit, and send it through testing. Done.

You can get a lot of Nintendo's classics via Virtual Console on the Wii/3DS for a few bucks

There's value to a back catalog; Nintendo could (and almost certainly will) sell RBY on the eShop, see a nice sales boost, and make money without compromising their strategy.

Quote:

And imagine now, all these kids who have iPads and not 3DS' would at least be introduced to the series, increasing demand for the newer hardware and games. I don't know about you, but I wouldn't buy my kid a 3DS and a Pokemon game on the hope that they might end up liking it.

And that's why you'll never see Pokemon on anything but Nintendo hardware. If you want Pokemon (and you likely will, given Nintendo's aggressive marketing and high game quality), you have to buy into the full ecosystem, at which point you'll continue buying games for that platform. Publishing their marquee games on non-Nintendo systems degrades this strategy; they may see a small boost in short-term sales, but at the expense of their five-year plan.

Quote:

But anyway, at least we have emulators. Maybe one day Nintendo will realize what's going on, but I doubt it. Hell, even Sega figured it out and released some of the old Sonic games.

Let us never use "Sega" and "good business acumen" in the same breath again.

Tons of old classics Nintendo probably won't care to release as is again, someone is an idiot for not using to opportunity to milk even more money (and potentially gain more hardware sales when people want to try the sequels)

Apple have sold 60 million iPod Touch and 37 million iPhones for all generations. That's 97 million. Nintendo have sold over 285 million of the DS range. Source wikipedia.

I think Nintendo have a bigger established platform than Apple.

Uh...no. Apple sold 156 million iOS devices of all types in 2011 alone. That 37 million iPhone number? That's last quarter's sales. And Wikipedia's worldwide all-models sales total for the DS? Also wrong. It's listed at 151.06 million. So Apple outsold the DS, over it's entire lifetime (since 2004), last year. If you're going to "research" things, you might want to give "accuracy" a shot. It makes your argument more compelling. And factual.

The problem is that they gain a #1 iOS seller, but lose the chance to sell 5-10 different 3DS games. Keeping Pokemon exclusive sells the Nintendo hardware, the exclusive game, then other games (exclusive and non-).

Edit: also notice the game was #3 at a price of 0.99, while real Pokemon games sell for $32 and up at Amazon. Where would the iOS game be on the charts at $20-30?

You're missing the point - Pokemon Yellow was released more than a decade ago. 10 - 10! - years later, it can still hit #3 on the top charts. This isn't some brand new game that was going to drive 3DS sales. On top of that, you can't buy Pokemon Yellow new, let alone run it on a 3DS, so Nintendo loses on both a) licensing older games to be remade and b) hardware sales.

I don't give a crap about the 3DS, but if I could pay a couple bucks to get the classics from my childhood, I would. Hell, I bet you could take the original Donkey Kong from 30 years, sell it for $1, and still be rolling in cash. It's not like you have to go through the entire development process again - the design is already there. Port the code, update the graphics a bit, and send it through testing. Done.

And imagine now, all these kids who have iPads and not 3DS' would at least be introduced to the series, increasing demand for the newer hardware and games. I don't know about you, but I wouldn't buy my kid a 3DS and a Pokemon game on the hope that they might end up liking it.

But anyway, at least we have emulators. Maybe one day Nintendo will realize what's going on, but I doubt it. Hell, even Sega figured it out and released some of the old Sonic games.

I see your confusion. Nintendo does plenty of re-releases of their classic games, especially on the 3DS. I believe the most recent was Super Mario Bros. So they've clearly "realized what's going on." The other fallacy here is that Nintendo should be selling classic games for ninety-nine cents. I believe the old Pokemon games, and even the original Donkey Kong, have greater value than (probably) any of the iPhone apps at that price range. While I can empathize with iOS users who desire ports of quality software, I believe Apple, like Nintendo, is uniquely persnickety about what hardware they'll allow users to run their own software on. I just don't believe that Mac users have a horse in the race to complain about. Apparently you would buy your kid an iPad on the hope that they might end up liking Angry Birds. Why not? It only costs twice as much as a 3DS. Forgive the rant here, but the argument is ridiculous.But what does it matter to me? I have no desire to play Gameboy games on a touchscreen.

Why does apple allow this? Simple: They get a cut of everything sold on the app store. Legal or not.

No, as was discussed in the article, apple has no legal position to confirm or deny who may or may not be sub-licensed on that content legally. Because of this, should apple prevent an app from being published that later turns out to be legally licensed, apple could be subject to lawsuit for lost profits, potentially well in excess of what the app may ever have mede if someone else corners an app type market during the legal delay.

Also considder, many of these apps never really make anything, thus apple's cut is very thin aside from a key few blockbusters, yet that small revenue stream can be make/break for a developer. AS legal foot to stand on from being blocked and a call to a lawyer is only seconds away. If apple had to defend itself just a few times a month that could be a massive drain on both legal talent available time and cost.

No, letting them be posted, and using the existing processes already in place in the trademark and copyright systems is appropriate, and is the EXACT same thing every retail outlet, flooring company, and online retailer do. It's not their job to be IP cops, and being one is both expensive AND risky.

You can get a lot of Nintendo's classics via Virtual Console on the Wii/3DS for a few bucks

There's value to a back catalog; Nintendo could (and almost certainly will) sell RBY on the eShop, see a nice sales boost, and make money without compromising their strategy.

Fair enough - I figured Virtual Console was going to end up being a piece of crap. As it sounds, I haven't touched either of Nintendo's systems in a several years.

Quote:

And that's why you'll never see Pokemon on anything but Nintendo hardware. If you want Pokemon (and you likely will, given Nintendo's aggressive marketing and high game quality), you have to buy into the full ecosystem, at which point you'll continue buying games for that platform. Publishing their marquee games on non-Nintendo systems degrades this strategy; they may see a small boost in short-term sales, but at the expense of their five-year plan.

That may have worked on my parents back when the Game Boy was the only real option, but what parent will compare the 3DS to the iPad and say "yes, I do think I should pay for that so my kid can play on it, rather than getting an iPad we can all use"? An iPad can play do video, web, and ebooks. Let alone the astounding array of free/cheap games. I've spent more time playing Angry Birds than I ever did playing Pokemon...

dsnettleton wrote:

The other fallacy here is that Nintendo should be selling classic games for ninety-nine cents. I believe the old Pokemon games, and even the original Donkey Kong, have greater value than (probably) any of the iPhone apps at that price range. While I can empathize with iOS users who desire ports of quality software, I believe Apple, like Nintendo, is uniquely persnickety about what hardware they'll allow users to run their own software on. I just don't believe that Mac users have a horse in the race to complain about. Apparently you would buy your kid an iPad on the hope that they might end up liking Angry Birds. Why not? It only costs twice as much as a 3DS. Forgive the rant here, but the argument is ridiculous.

It doesn't have to be 99 cents - Infinity Blade (1 & 2) did exceptionally well. Most EA games are only 99 cents when they are on sale. My statement of using 99 cents for the price were just to say that even if Nintendo went for that low of a price, they would still be making plenty of money.

Your other point regarding the price and uncertainty when buying an iPad is a sign of a misunderstanding of children. When I went to school, we all played Pokemon. Everybody played Pokemon, and that made us all go to our parents and beg for the next version to be the first one to have it. Today's generation of kids do not care about the 3DS - of all the kids I know none of them have a 3DS. Zero, zip, nada.

You know what they do have? iPads - they each have an iPad. When Billy's dad down the street has an iPad and your kid comes home saying "Billy and I watched <whatever is popular for kids> on Netflix and played Angry Birds and now I want an iPad for Christmas" - well, guess what you're about to get them for Christmas?

For you and I, yes - 3DS vs. iPad - we use different ways to determine what the level of uncertainty is for a product. But for a kid, it's about exposure and it being "cool" to have one.

Why should Nintendo not sue Apple for this? Apple is running a store here where they are directly profiting from sales of illegal counterfeit items. This could not be covered by DMCA. I am sure they have so agreement in place with the app creators which states that they are responable for any damages but it would be Apples job to enforce such an agreement to get paid back once Nintendo won the suit as Apple has no rights to say who Nintendo can sue. Maybe the Feds should shutdown Apple, seize their assets, and arrest the CEO like the MegaUpload case.

You can get a lot of Nintendo's classics via Virtual Console on the Wii/3DS for a few bucks

There's value to a back catalog; Nintendo could (and almost certainly will) sell RBY on the eShop, see a nice sales boost, and make money without compromising their strategy.

Fair enough - I figured Virtual Console was going to end up being a piece of crap. As it sounds, I haven't touched either of Nintendo's systems in a several years.

It really depends, you're not incorrect in many respects. I don't own a Wii, but the eShop for the 3DS has an absolutely horrifyingly counter-intuitive interface. It's this weird setup where you have to slide between categories on the touch screen, and then slide across the selections of games. There's no filtering and no other way to change the view. A lot of the time it also doesn't show you the price until you actually go into the game's summary page.

The selection in the 3DS shop is almost entirely limited to Gameboy/Gameboy color games while the Wii store receives the rest - Nintendo has thus far not shown any interest in bringing anything else to the system outside of the GBA ports they added for ambassadors. Anything outside of the Virtual Console is shovelware not fit for one's worst enemy - with the sole and notable exception of Sakura Samurai.

Your account is tied to Console ID, not User ID. Which means purchases are tied to that unit only, and god help you if you lose the unit or it dies - I've been told that the only way out there is to get a new 3DS, call Nintendo and be prepared to jump through a lot of hoops. There's a transfer function in the 3DS if you have to migrate to another machine but as of when I last checked a month or two ago, it's still not implemented.

Apple have sold 60 million iPod Touch and 37 million iPhones for all generations. That's 97 million. Nintendo have sold over 285 million of the DS range. Source wikipedia.

I think Nintendo have a bigger established platform than Apple.

Uh...no. Apple sold 156 million iOS devices of all types in 2011 alone. That 37 million iPhone number? That's last quarter's sales. And Wikipedia's worldwide all-models sales total for the DS? Also wrong. It's listed at 151.06 million. So Apple outsold the DS, over it's entire lifetime (since 2004), last year. If you're going to "research" things, you might want to give "accuracy" a shot. It makes your argument more compelling. And factual.

151M for DS/DS Lite/DSi/DS-XL, 15M 3DS, so actually 166M. I believe the 285M figure includes all Gameboys made since the beginning of time, which obviously means nothing when you include systems that Pokemon Yellow was originally released for!

So all the money they just cashed in on the fake game I guess the developer still gets to keep and apple still keeps there share. Seems like there isn't anything to keep the developers from doing this.

How does a fake Pokemon game get past Apple's approval process? Could it be that they might not be as capable as they would like you to believe?

They're just taking the MegaUpload approach. Only infringement on which a notice has been received will be taken down.

If it makes money in the meantime, all the better.

Apple has a policy of not allowing unfinished or beta apps onto their store. I really doubt this game that doesn't work past the first screen could have gotten past the person reviewing it.

So let's see, an app violated apple's TOS on privacy, outting the ipad before release, pissing off SJ. Then they let slip apps that didn't properly protect the address book. And the app from Charlie Miller.

I'm sorry, but anyone who keeps telling me the app store is properly curated is full of it.